Individualized Assessments Are a Must Under ADA

A recently decided case involving the reassignment of a legally deaf forklift operator serves as a good reminder to all employers of the importance of not making assumptions and of conducting a thorough individualized assessment of a disabled person’s ability or inability to perform a specific type of job.

Nicholas Siewertsen is a deaf man who has worked for Worthington Steel since 1999. His primary form of communication is sign language, and he can “feel the vibrations” of noises and sounds. He communicated via a notepad to write messages, instant messaging, Microsoft Word, hand gestures, and limited speech.

During his time with the company, Siewertsen operated forklifts, overhead cranes, and other heavy motorized equipment. When operating a forklift, employees were required to honk an attached horn repeatedly when approaching a corner, in the shipping bay, and when reversing. Siewertsen couldn’t hear the horn, but he could feel the vibrations. Before operating a forklift, he would inspect the forklift’s flashing lights and emergency brakes to make sure they were working, and he would honk the horn to make sure he could feel its vibrations. He received multiple awards for outstanding safety performance, and his evaluations consistently demonstrated his supervisor considered him safety-conscious.

In 2011, years after Siewertsen first became employed, his supervisors became aware of a corporatewide policy that deaf employees weren’t permitted to operate forklifts. After they discovered the policy, management met to discuss whether it should be applied to Siewertsen. They were concerned not only that he could hurt others but also that he would be at an increased risk of injury himself. They discussed whether any accommodations would allow him to safely operate forklifts and determined there were none. They did not, however, consider his prior history of success and experience driving forklifts, and they didn’t ask him whether he had been applying any additional safety precautions in his job.

Siewertsen was transferred to a different job without reduced pay. The supervisors also determined he was ineligible to perform all but four jobs at the plant because of his deafness. Siewertsen was later denied a promotion.

Siewertsen filed a lawsuit in the U.S. District Court for the Northern District of Ohio against Worthington Steel under the Americans with Disabilities Act (ADA) claiming discrimination based on his disability—deafness. Both parties asked the court to rule in their favor without a trial. The court readily found that Siewertsen is disabled and that his employer took an adverse employment action against him solely because of his disability.

The key remaining issue was whether Siewertsen was qualified for positions that included forklift operating duties. On this issue, the court noted, “The ADA mandates an individualized inquiry in determining whether an employee’s disability or other condition disqualifies him from a particular position.” According to the court:

A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question. This follows from the ADA’s underlying objective: people with disabilities ought to be judged on the basis of their abilities; they should not be judged nor discriminated against based on unfounded fear, prejudice, ignorance, or mythologies; people ought to be judged on the relevant medical evidence and the abilities they have.

Siewertsen argued Worthington Steel failed to make an individualized inquiry into his specific disability as required by the ADA. The court found that although management met to discuss his disability and whether there were any appropriate accommodations, there was also evidence that they never consulted with him about his history of success. Siewertsen also identified a number of other accommodations that the court found wouldn’t create an undue hardship at first glance, such as installing LED lights to light up the floor, creating designated lanes, or adding convex mirrors at intersections. The court ultimately decided that Worthington Steel failed to establish that it had satisfied its ADA obligation to conduct a sufficiently individualized inquiry into Siewertsen’s ability to safely operate forklifts and cranes in the plant.

Likewise, the court left it to the jury to decide whether “hearing” was an essential function of the job. On one hand, Siewertsen had been successful in the position for a long time and had a very good track record for safety. On the other hand, the fact that he can’t hear warning horns did put him in more danger than other employees.

The employer also didn’t prevail on its defense that Siewertsen constituted a direct threat to himself or others, which would make him unqualified under the ADA. The court found that defense had to be based on a reasonable medical judgment and the best available objective evidence. An employer can’t disqualify an applicant because there is a slightly increased risk of harm. The threat of harm must be substantial. Siewertsen v. Worthington Steel Co., Case no. 3:11CV2572, 2015 U.S. Dist. Lexis 129455 (Dec. 8, 2015, N.D. Ohio).

ADA cases dealing with accommodations, individual inquiries, and essential functions turn substantially on their facts. Employers that think they have done what is required under the ADA would be wise to go a step further in the interactive process—as long as it won’t cause an undue burden. When these cases are close calls, the court may just decide to let the jury handle the judgment.